Weisberger v. Weisberger ____ N.Y.S.

3d ____ (2017)

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Nature of the Case

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Facts

H and W were married on March 5, 2002. In 2005, W told H that she could not tolerate having sexual relations with men and that she was sexually attracted to women. H eventually agreed to give W a Get (a Jewish divorce), and, on November 3, 2008, the parties entered into the stipulation of settlement containing the religious upbringing clause at issue on this appeal. The parties were divorced on March 6, 2009. H and W agreed to joint legal and physical custody. They agreed to bring up the children according to Hasidic culture. The father learned that in fall 2012 a transgender man (O) moved into W's home. H sought sole legal and residential custody. The children informed H that O. assisted in bathing them and told them about sexual parts of the human body. In October 2012, W began dressing the children in secular clothes and cut their son's payos (sidelocks). H testified that the children began speaking English in school, stopped saying blessings at meals and nighttime prayers, and were eating non-kosher food. H had allowed the children to ride a train and use light switches on the Sabbath. W also allowed the children to watch movies, including a movie about Christmas, and participate in an egg hunt at a Purim party. H testified that in March 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality. H denied that W's sexual orientation was the motivation behind his request for a change in custody. But, H wanted W to keep her lesbianism a secret from the children. H had not made a single child support payment to her since their separation, notwithstanding the explicit terms of the stipulation of settlement. W informed her older daughter that she was gay. The Supreme Court determined that there had been a change of circumstances caused by the mother's transition from an ultra-Orthodox Hasidic lifestyle to a 'more progressive, albeit Jewish, secular world.' The court noted that W's conduct was in conflict with the parties' agreement, which 'forbade living a secular way of life in front of the children or while at their schools.' Because of the agreement between the parties the Court thought that it was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination.' The court awarded H sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation by W. The Supreme Court granted H's motion which was to enforce the religious upbringing clause so as to require W to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra-Orthodoxy at all times. It also ordered that W must practice full religious observance in accordance with the Hasidic practices of ultra-Orthodoxy during any visitation period. W appealed.